In this episode…

Jon spoke about being confident as an expert, “Respect yourself and do not fear opposing counsel. . . that requires the witness to be confident in themselves as to their expertise. If they feel they are only 85% a good expert, they should not be an expert witness because that could be an embarrassing, horrible experience for them.” On preparing, he spoke about starting close to the outset of the trial, remarking, “The truth is, you can’t remember things for a month.”

Additional topics include payment, the importance of always speaking truthfully, and not underestimating the opposition.

Episode Transcript:

Note:   Transcript has been lightly edited for clarity

Host:  Noah Bolmer

Guest: Jon Albert, CEO of The Albert Company

Noah Bolmer: Welcome to Discussions at the Round Table. I am your host, Noah Bolmer. Today’s guest is Jon Albert. Jon is the founder and CEO of the Albert Company, the world’s largest supplier of celebrity talent and popular music for advertising. Since its formation over 40 years ago, the Albert Company has advised, counseled, and quoted over 20,000 projects with industry-leading clients ranging from Intel to Ford. Additionally, Jon has served as an expert witness in dozens of cases, mainly involving unauthorized use. I am excited to have you here today, Jon.

Jon Albert: It is good to be here. This is unique for me. I usually say I cannot take other interviews, but this one seemed interesting.

Noah Bolmer: We are glad to have you here today. Let’s jump into it. The Albert Company is not an agency, correct? You represent advertisers.

Jon Albert: Yes, I would like to compare ourselves to multiple listing real estate brokers. In other words, yes, we represent the advertiser, but we work as an in-between person brokering and packaging a deal. So, it works for both sides.

Noah Bolmer: How did you start this company? How did all of this come to be?

Jon Albert: Going back to my youth.

Noah Bolmer: That is right.

Jon Albert: We started the company in 1976 and we moved to Hollywood. We would get some actors like Vincent Price and Richard Deacon and a few people to do some generic commercials with them. In other words, you can have somebody walking down a beach talking about buying jewelry, a car, a house, or investing for your family. That way we could make available to small advertisers’ inexpensive celebrity talent. What happened from the beginning is we made-up packages like you can get two TV spots, and two radio spots with Vincent Price. One of the first calls we received was from a steak restaurant chain from Iowa and they said, “OK, we want Vincent Price, but we do not want you to do the production. We want to do the production and we do not want two TV spots we want one,” etcetera, etcetera. I had been in advertising for years before that, so I knew the lingo. They said, “What would Vincent Price cost?” I said, “I will get back and let you know.” What do you say? How would I know? I called Vincent Price, and he said, “Yes.” I asked, “How much money would you charge?” “I probably could do it for $9,000.” I called the client back and I said, “Well, 10 grand.” They said, “OK.” We made our first $1,000 or so and it turned out nobody wanted the packages we offered, but they wanted the celebrity talent. About two or three years later, we were the largest provider of celebrity talent in the country and doing major work with major agencies. It was filling a void that we were not aware was there. It just happened.

Noah Bolmer: That is a great story. You were one of the first companies to do this. Was there anyone else acting as an intermediary in that manner?

Jon Albert: There was at the time, but we came in with a very corporate approach. I think we had after the first two years or so, we had about a dozen employees. We put an ad in Advertising Age. That was a double truck. It was 2 pages across the staples. We hired an ad agency to do that.  We had everyone from Ed McMahon and several dozen celebrities in there to show them what we had to work with. I remember what the ad said at the top, “Others may promise the moon. Berg Albert Corporation delivers the stars.”

Noah Bolmer: That is good.

Jon Albert: It went over big. That is when people read Advertising Age cover to cover, which everybody did. It was thick.

Noah Bolmer: How did you turn that experience into a career as an expert witness? How do those two things connect?

Jon Albert: Being an expert witness is still a side career. It is not what I do full-time. I have done, I think, around 60 cases since 1989. That is more than 30 years. I remember Rick Hirsch, who used to be head of commercials in the United States at William Morris Agency. He was a great guy, and he is doing things independently. Now, he called me and said, “Hey, they called me here at William Morris to ask if I would be interested in being an expert witness in a case, but William Morris does not allow its employees to be expert witnesses.” They did that for two reasons. First, it is not that they cannot testify against talent, but it would be weird. Plus, they would not be a believable witness. If they went in as an expert and represented celebrities well. Does that look like it is objective? Of course not.

Noah Bolmer: A conflict of interest.

Jon Albert: So, he said, “I had done a lot of deals with him. I would like to suggest you for it. Are you interested?” That is how it started, I said, “Yeah, sure. Why not?” I had never done it before, did not know anything about it, and the rest is history. I enjoyed it. It was a great break from what I normally do. I was on the debate team in high school and a chess player and that seemed to fit into being an expert. There are many of the same attributes and talents that you need for both.

Noah Bolmer: So, going back to that first experience. Did you feel prepared for the case? Were you ready? How did they first prepare you to go forward as you have done dozens of cases? How have you improved?

Jon Albert: Wow, I would have to say I was completely unprepared for the first case. I had never done it before. I had never seen an expert witness testify. I had no idea what you do first. There is an extra report and a deposition in a trial. There are negotiations likely for settlement etcetera. That was probably good because if I knew all that and what I didn’t know, I would probably be afraid to do it. I went in confident. At that point in 1989, we would have been in business for 13 years and we were the leader. I felt very confident about what I knew. I do not even know if I was the number one negotiator, but we were way ahead of whoever was number two because we were doing the most. We had a great reputation. So, I went in overly confident. It was just going to be telling the truth. They want my opinion. So that is what I will do. I believe the first case is Bette Midler. If you remember, I think it was Ford.

Noah Bolmer: Right. I remember the case.

Jon Albert: And I was on the appeal side in that case on behalf of Bette Midler. That was the case.

Noah Bolmer: That is a seminal case, I believe that was the case where they used her likeness . . .

Jon Albert: Or sound like it was the singer.

Noah Bolmer: Right. A sound alike.

Jon Albert: They told the singer to try and sound like Bette Midler, right. So, they were caught dead to rights.

Noah Bolmer: Right. Yes, she prevailed in that case. So, you were on the winning side in your first case.

Jon Albert: I do not know any case that I have not been seriously.

Noah Bolmer: Is that right?

Jon Albert: Think I have always been on the winning side, which is something. I think I should probably share. I think you would ask me what the basics are at the beginning of the case. I think it would be a good time to bring that up. What do I look for in that first conversation with an attorney? I think this is why I have always been on the winning side. I look to know the basics of the case. What happened? Why did it happen? Then I can think “Hey, wait a minute. You are in the wrong here.” Maybe we do not want to use you. That is one thing. Another thing I might ask him is, “What are you looking for?” They have some relatively unknown talent and they want to get $50 million. “Wait a minute. I do not think I can do that for you.”

Noah Bolmer: So, this is before accepting. This is you deliberating on whether or not you want to work with an attorney.

Jon Albert: At the same time, in that initial conversation, usually now a Zoom call, they are deciding whether to use me.

Noah Bolmer: Right.

Jon Albert: They like the way I look or the way I sound. Do I have the right background and attributes that they are looking for? So yes, one of the things I look at is, does this fit my area of expertise, because sometimes it does not. I will say, “I am not an expert in that. I have opinions on it, but I would not call myself an expert.” I know at that point I do not want to do the case because opposing counsel is going to destroy me. Why would you go into a situation like that where you are not an expert? I think that one of the reasons that my clients have been successful is they have good cases. I do not go in not knowing what I am doing.

Noah Bolmer: Have you turned down a significant number of cases?

Jon Albert: That is a small percentage because usually, the people that come to me know who I am. They know their law firm has used me before or they have called the law firm. Many of them are major firms because that is who presents major advertisers, and major talent. They are often well-known firms, and they know how to pick their experts. Who to call to find out who to use as an expert?

Noah Bolmer: Let’s go back to the preparation and what you have learned since the beginning. You have been through dozens and dozens of cases, what are the things that attorneys do well? What would you say to attorneys who are working with experts for the first time? How do they better prepare a new witness? Somebody who has never done it before?

Jon Albert: I cannot say how they should prepare their experts. I can just say how they should prepare or not prepare me. What works for me. If it is someone’s second time doing it or it is an attorney that is not familiar with using experts, I cannot advise them. I think they can glean from my experience and that will secondarily provide some advice. In a secondary manner. Does that make sense? What I look for in the relationship with the law firms is, first, they trust the expert’s expertise. They need to trust me. I am not going to be arguing with them, which I have not, about the way things should be. They cannot change my outlook.

Noah Bolmer: Right.

Jon Albert: I will not let them change it. I am not saying I am intractable. I am just saying that sometimes they will want to bend a case. So, it fits what they are trying to get at, but then I realize it does not match my experience or opinion. They need to trust me and be supportive. They need to provide me with all the materials I need. All the previous contracts that the celebrities have been involved with. They need to show respect, which they all do. I like it when they ask intelligent questions because, as you can see, I give long answers. I do not give short answers. If an attorney said, “In the deposition give short answers.” You have got the wrong guy for two reasons. I like to be complete and that cannot be in one sentence or five words. Also, I often explain to them that a jury and a judge do not know much about celebrity contracts. They may know about other things, but most people do not have a clue what goes in them. What are the industry standards? I feel that it is important for me to act as an educator.

Noah Bolmer: Okay.

Jon Albert: So, when I answer a question, I will usually give a little background for it so opposing counsel understands why I am saying what I am saying. Then, later the judge and jury will understand because they do not understand the business. I must give a little background on the culture.

Noah Bolmer: You must walk a line between being an expert, but also explaining things in a manner that lay people will understand what you are trying to get across. Is that right?

Jon Albert: Absolutely, that is fine. I do not use any legalese in expert reports. If an attorney wants to suggest some language, I will say, “You can suggest a. thought that is great, but I am not going to use your legal language because everybody would know that is fake” I do not speak like that unless I am negotiating an agreement with someone but even then I am not going to say. “Whereas and hereby.” Give me a break. Give everybody a break. It is a fine line and one of the reasons I think our clients or advertisers have always liked our agreements is that anybody can read and understand them. The attorney that first worked for us and any attorneys that do work for us now are directed to write in language that somebody in a production staff, and agency can refer to the contract, and know what they can do and not do. They do not have to call their attorney and say, “Gee, would you read page 37 and interpret this for us?” Our agreements are much shorter and anybody with education knows exactly what is going on.

Noah Bolmer: When you are dealing with opposing counsel, you had an interesting piece of insight in a letter that we were exchanging. You said, “That half of the time, they are scary and half the time, they are friendly to disarm the witnesses.” The real piece of insight was that they try and get you is in the back half when you start to run out of blood sugar. Your strategy is to have some cookies, I would love to hear more about that.

Jon Albert: This would be advice to newbies or experienced expert witnesses, and they may know this by now, attorneys might want to know that we are not stupid. Maybe some experts are, but anybody who has done a bunch of cases knows what is going on here. What I am saying Is never, ever, ever trust opposing counsel. They all have their techniques. Maybe they learn it in depositions 4.04 in law school, I do not know, but they all have their techniques. One can try to be intimidating and businesslike and they are “Tell me, Mr. Albert.” OK, fine. You are not my teacher. You are not my dad, and you can talk to me that way, but it is not how it is going into my brain. Or they can be friendly which, why would they be friendly to me? The point here is they are in that deposition for one reason, and that is to show I am a liar, a fool, and/or a fake. They are there to try to either destroy me that day or set me up to destroy me in court. To find contradictions. To find I have made up an answer or I did not know what I was talking about. Look for lies, trip you up, and ask questions with double meanings. They are not there to not gain information where they will. They just want to gain some background about the case. Not true. They are there to figure out how to destroy me, or any expert, in front of the jury. That is their job, I think experts need to know that they use different techniques to disarm you. By being friendly or intimidating you.

You mentioned blood sugar, one of the things I have found over the years is the first few hours of the deposition are not easy. Then you come back after a lunch break, and most times for me, that lasts 6 to 8 hours, the shortest I have ever been in. Recently, when it was an hour and 15 minutes. I was shocked. An hour and 15 minutes! That is usually the introduction. You get back. They question you for an hour or so. it is fine and then about two-thirty-three in the afternoon and they come and hit you with the hard stuff. The entrapments, the ambushes, and the deep stuff. I always sense it when that happens, and I always have some chocolate chip cookies or some ginger snaps. They are soft and so I am not crunching, and I eat those every 20 or 30 minutes as it’s going on because they know my blood sugar levels. They have already tried to wear you down for five hours, and now they are going to hit you with the hard stuff. You have to be the sharpest you are all day in the afternoon because that is when the tough stuff is going to come, at least it always has for me. That is when they ask the big questions. The ones where they are trying to get you to say something that should not be said. You need to keep your sugar up. You have to keep your cool. We can get to that later. I will keep that answer short.

Noah Bolmer: Do you have any stories or anecdotes that illustrate some of these points? Any specific cases? I know that you cannot necessarily talk about the specific people involved but are there any cases that stick in your head as being difficult or something that worked for you or did not work for you as a witness?

Jon Albert: A couple pops into my head and I will not give any details. I do not know anybody angry from things that happened years ago. Once I was deposed by an attorney, a famous one. He represented a famous person. This guy gets up from his chair and he is walking over, and I am sitting there, and he is towering over me. Well, Mr. Blah Blah Blah, the counsel I am working for, keeps objecting, “Hey, you should sit down. Don’t intimidate my expert.” Well, I sort of waved at the attorney I was working with. “Don’t worry. . . it is cool.” I know it is just theatrics. It is a guy’s style a few hours into a deposition. I remained calm like he was not there. It drove him crazy. He huffs and sits back down in his chair. The point, for other experts, is to not get rattled. If you do it is because somebody sucked you in to being rattled to disarm and confuse you. Just be calm. They are not going to beat you up. Make like it is not happening.

I also remember going into a major deposition with major names quite a few years ago. When I walked into the opposing counsel’s office in a major city and this big conference table was set up for the deposition. They sat me and I was looking at a window with the sun coming in. It was shining in my eyes. I am like what am I? A moron? They had a camera with a lens that must have been 6 inches wide and a video camera that honestly could not have been more than a foot and 1/2 or two from my face.

Noah Bolmer: No! Oh man!

Jon Albert: Before the deposition started, there were several attorneys from this law firm. I said, “I do not like the seat I am in. The sun is in my eyes, and I am not going to be deposed with a camera a foot and a half from my face. That is discomforting.” They said, “Well, the room is already set up,” That tweaked something in me. I stood up and said, “OK, here is the deal. I am going to the men’s room. When I come back. I am going to have a different chair and the camera is going to be at the opposite end of the table or I leave.” “Well, sir, you cannot leave here because it is our deposition.” I said, “No, it is my deposition, and it is not being taken under this circumstance.” I went to the men’s room, and I came back in 5 minutes. I was at the head of the table looking at the dark part of the room and the camera was about 15 feet away from me. I would say, it is the experts, not the opposing counsel’s deposition. They are not in control. They may be able to say when brakes are taken and certain things like that. It is your deposition as the expert. You must be comfortable and feel good. There are certain ground rules. You cannot give in to those things that are done to intimidate you, to throw you off base. Do not buy into it.

Noah Bolmer: As an expert, you need to advocate for yourself.

Jon Albert: And our client and your client.

Noah Bolmer: Do you think that the attorney that you are representing, or you are with needs to take a more proactive role? In other words, should he have stepped into that situation and said, “No, my expert is not going to sit in this with the sun in his face, next to a camera.”

Jon Albert: Yes, an attorney should do that. However, I do not look for them to do that. Honestly, I am not looking for the attorney I am working for to do anything in the deposition except during the breaks to say something to me if they need to. They will say, “Hey, you are doing great.” Or you might have a question for me. I would assume, except for the objections they need to raise, they need to put objections on the record or comments. I feel I am old enough and confident enough that if I am uncomfortable with something or the way a question is stated, I say it. I do not give a darn what opposing counsel thinks of me. They do not know that I do not come on like a prima-donna or a big shot. Not at all. I am relatively humble. I am like Tom Brokaw who was respected as a reporter because he was so respected, powerful, and always soft-spoken. I like that Midwestern sort of thing. I am from the Midwest, and I do not get upset. You do not have to get confronted. Just say what you mean. Just mean what you say. Walk softly and carry a big stick and do not give in on anything.

Noah Bolmer: Sure.

Jon Albert: Unless the attorney you are working for says you should, but it has not happened. Respect yourself and do not fear opposing counsel. However. I think that requires the witness to be confident in themselves as to their expertise. If they feel they are only 85% a good expert, they should not be an expert witness because that could be an embarrassing, horrible experience for them. Typically, at least in my case, the opposing counsel is good. They are the best in the business, and they represent major corporations or major talent. They know what they are doing and if you do not feel you know what you are doing, then do not do it.

Noah Bolmer: Right, and they have probably done some oppositional research on you as an expert to try and impeach you.

Jon Albert: They will probably go to the Internet and find this interview and say, “Oh. Albert’s going eat his cookies or I was expecting it to be this way or that way.” Well, they probably will if they are good attorneys, they will probably hear this interview. I am not going to let too many secrets out.

Noah Bolmer: Let’s pivot to another thing that you mentioned in one of our exchanges, which is time management. This was interesting to me. You said you do not worry about it too much because you cull unimportant things. Tell me a little more about getting to what is important and not spinning your wheels and wasting too much time on stuff that is not.

Jon Albert: Typically, I do not charge hourly for expert work. Occasionally I will charge if there is some special work required. I will charge a retainer for which I go through all phone calls and Zoom calls. I read that FedEx box of materials they send me and that takes it up to doing the expert report. I do not charge for hours for that. I anticipate that in advance, and I include that in a retainer. So, the attorney’s do not feel they are being  overcharged, or the hours are being padded because I do not want to even go there. As far as time management. I do not manage my time. I am more like when there is a deadline. If there is an expert report to be filed by March 18th. I will ask the attorney, “When would you like a draft?” “We would like it by the first week in February.” Fine, I get it to them the first week in February. I know when a deposition is, let’s say March 1^st,  I do not start preparing on February 1^st,  because the truth is, you cannot remember things for a month. I mean, maybe some people can. I am not going to remember details for months. I put it out of my mind. Now, I will take phone calls from the attorney if they want to discuss things or have a question. About 2-3 weeks before deposition. I start going over materials a few days before. I am a different person. I am a detailer. I am like I am in the middle of a debate. Questions come to me while I am in bed that I may be asked by opposing counsel. What I do is charge a flat rate for a deposition. If a deposition is canceled, let’s say they set it for March 1^st, and on March 12^th they say, “We are going to postpone it until June.” Well, you are going to pay me for the March 1^st  deposition, because I have already put in a week of preparation. Understand that when or if the case settles, and cases settle days or hours before a deposition, you are going to pay me for the deposition. I am sharing this with people so they do not walk away thinking, “I did all that work, and I will not get paid because the deposition did not happen.” You have to look out for yourself.

Noah Bolmer: In general, do you think it is advantageous to work on a retainer rather than hourly as an expert?

Jon Albert: Well, I know for me it is. I realize that for many experts, the way the system is set up and the way many attorneys work hourly. It is all they understand. In my recollection, did somebody insist it is hourly?  I think I was working for the defendant. The insurance company was paying for me, and they would only accept it as hourly. So, I did it hourly. It came out the same but. I did it hourly.

Noah Bolmer: Jon, before we wrap up, do you have any parting advice or other things that you would like to say to any attorneys or new experts just starting?

Jon Albert: I would give two pieces of advice, and believe me, I do not say this with pride. Lord, my life has taken all the pride out of me. So, this is humble as it can be. There is no pride in this. You will always be successful in the deposition and by successful, I mean, you are not going to be embarrassed. You are not going to get trapped. You are not going to be made to look like a fool if you do two things. They seem very simple, but most people do not want to do them. First, tell the truth. Not 99 percent of the time, but 100 percent. You can never be trapped if you tell the truth. Second, never make up an answer so you look like an expert, sound like an expert. If you do not know the answer, just say, “I do not know. That is not my expertise. Well, what would your opinion be?” I will say, “I am not an expert in traffic accidents.” Why would I have an opinion? Do not make anything up. Always tell the truth and say the truth shall set you free. You cannot get tripped up if you tell the truth, including if you do not know what the answer is. Just say, “I do not know. I have not come across that.”

Noah Bolmer: That is sage advice. Thank you for joining me here today.

Jon Albert, CEO, The Albert Company

Jon Albert is the founder and CEO of The Albert Company, the world’s largest supplier of celebrity talent and popular music for advertising. Jon is an established expert and has been engaged in dozens of cases; particularly involving unauthorized use.